Matrimonial law is a complex and fast moving area of the law. It is therefore not practical to attempt to present on this page a full explanation of all areas of matrimonial law which may be of interest to you. A pre-nuptial contract should be considered if existing asset protection is required.
The breakdown and end of any relationship can be difficult and upsetting. There will be many issues to resolve. Lamonts can offer advice and guidance which will relieve anxiety and doubt. Divorce and Separation will mean making arrangements for your children, sorting out your finances and deciding where you are going to live. Lamonts will advise on these and other matters which cause concern. If you are thinking of separating, or have separated from your spouse, it is important that you receive legal advice at the earliest date possible. It is preferable that you should take legal advice before leaving the matrimonial home or agreeing to any division of matrimonial property.
From May 2006, the sole ground for Divorce in Scotland is the irretrievable breakdown of marriage. This has to be proved in one of four ways:-
To avoid substantial legal expenses arising for both parties, Lamonts always recommend that, where possible, a Separation Agreement is entered into. The Agreement can be negotiated by the parties under the guidance of their respective Solicitors. The Agreement will cover matters such as the care and control of the children, the level of financial support to be paid to support the children (and, where appropriate, the lower earning spouse), the division of the matrimonial property, the sale of the matrimonial home or the transfer of the Title of the matrimonial home to one spouse.
The definition of matrimonial property is wide. Lamonts will assess your particular circumstances and shall advise you on which items are matrimonial property and which are not. Matrimonial property can cover a vast range of items from the matrimonial home to a party's pension fund.
A Separation Agreement shall also specify the precise separation date which is an extremely important date for the purposes of any subsequent Divorce or division of property. Many Separation Agreements will also include a provision whereby the parties undertake to consent to a Divorce being granted on the grounds of the parties having lived apart for more than one year. In due course, this may allow the parties to secure a Divorce without having to appear in Court and without having to pay substantial legal expenses.
The Civil Partnership Act 2004, which applies throughout the UK, came into force on 5th December 2005. The Act enables same-sex couples to make a formal, legal commitment to each other by entering into a 'civil partnership' through a statutory civil registration procedure. The process brings a range of new rights and responsibilities to those involved. Pre CP contracts should be considered where existing asset protection is desired. The financial consequences and provisions for dissolution of a CP are virtually the same as those applying to marriage.
Through confirming a civil partnership, couples can gain important rights and responsibilities which will assist in the organisation of everyday life. For example, the provisions in the legislation include:>
Once you have entered into a Civil Partnership, you should also be aware that changes will apply in many areas including:
From 4 May 2006, couples who choose to live together rather than marry have certain rights under the law although prior to this date simply living together gave cohabitants very little legal protection. The Family Law (Scotland) Act 2006 abolished marriage by cohabitation with habit and repute [where a couple were perceived by third parties as being married] except in certain circumstances.
Where a couple (same sex or opposite sex) live together, the law now recognizes the possibility of mutual interest in household goods. Each case is assessed according to the facts and circumstances applying including whether or not evidence of ownership by either party can be clearly established.
If a couple split up, either one can apply to the court for up to a year afterwards for an order to pay a sum of money by way of compensation for the cohabitant who considers they have lost out financially. The court would look at all the circumstances including whether the person applying to the court has suffered economic disadvantage (usually loss of earning capacity, capital etc) and whether the other party has benefited from the other's contributions e.g. looking after the couple's children.
Where one member of a cohabiting couple dies the rights which the surviving member of the relationship has depends very much on whether or not the deceased made a Will. If there is a valid Will the new provisions in the Family Law Act 2006 do not apply. The terms of the Will prevail. If there is no valid Will the surviving cohabitant can make an application to the court (within six months from the date of death) for a capital sum from the deceased's estate. The court will take a number of matters into consideration including the size of the deceased's estate and any other claims against the estate by e.g. a wife, children.
The rights which the new Act gives to couples who decide not to marry or enter a civil partnership are still very limited. It is always possible for you and your partner to reach agreement on what would happen to all of your assets if you were to split up. You could also reach some agreement about who would look after any children, and deal with other matters which you think are important. A pre-cohabitation Agreement should be considered if existing asset protection is desired.
Consulting your Solicitor will allow you to address all issues re your particular circumstances and objectives. Lamonts will help you to find the solution which is right for you whether married, in a civil partnership or cohabiting. It is important that you make a Will to fully reflect your wishes re the distribution of your estate and therefore the completion of a Will, or the review of an existing Will, will ordinarily be part of the process when you consult with us.
Remember that any consultation with Lamonts is entirely a private matter. We think that you will appreciate our sensitive, understanding, discreet and practical approach. For matters of special complexity, we may refer clients to a Family Law Specialist Solicitor with whom we have an informal referral arrangement.