Arm yourself with the family law facts
Considering most of us know someone who has been through a domestic upheaval, it’s little wonder so much of family law is misunderstood.
People often forget there’s a separate legal system in Scotland, so what applies to your English friends may be different here.
Splitting up is difficult - but knowing the law better can help calm the waters. So, let’s bust some common myths about the law surrounding relationships.
After a certain time together, some co-habiting couples believe they have the same rights as spouses. This isn’t true; there is no legal presumption that assets or liabilities should be split 50/50 between cohabiting partners if they separate.
For those thinking of marrying, there’s a widespread view that prenuptial agreements are not enforceable in Scotland. However, correctly prepared and validly executed prenups are indeed legally binding here. Part of being correctly prepared includes ensuring neither party feels under pressure to agree to a prenup at short notice, so it's best done well in advance (or agree a post-nup instead).
There are misconceptions surrounding divorce, one being that ‘bad’ behaviour – like an affair – will lead to a less favourable settlement for the wrongdoer. A spouse’s conduct is not generally considered by courts unless it has adversely impacted the other party’s finances, such as through a serious gambling habit.
If your spouse is the sole owner of the home you both live in, don’t be misled that they can kick you out if you split up. Your ‘occupancy rights’ usually mean you can continue living in the matrimonial home, even if your name isn’t on the title deeds. If your spouse changes the locks, seek legal advice.
When it comes to splitting assets, everything a couple accumulates between marriage and separation is considered ‘matrimonial property’, with each spouse entitled to a ‘fair share’. There are exceptions for inherited assets, gifts from third parties, and property purchased before marriage. However, it’s not often appreciated that pension contributions paid during marriage also count as matrimonial property, so if one party has a much higher pension, they may need to pay their spouse from this. The value of a business also counts, and an expert will be instructed to calculate the company’s worth at the date of separation, with this figure added to the 'matrimonial pot'.
Many people believe they’ll end up supporting their spouse long-term, even after a divorce. Scotland’s preferred 'clean break' system means it’s unlikely one spouse would continue paying maintenance (known as aliment) for long. In some circumstances, maintenance is awarded for a defined period, to ensure the receiving spouse has time to adjust to new circumstances.
If children are involved, many presume that courts prefer them to stay with mum. Nothing in law states this should be the case. Instead, courts must consider the children’s best interests. Most of the time, courts see this as having a relationship with both parents.
Many also believe child support stops at 18, but children can receive payments from parents until they’re 25, if in further education, or training for a trade or profession. Once over 18, payments are paid to the child directly, rather than via the Child Maintenance Service.
Splitting up – with or without children – is rarely straightforward, but there’s a wealth of guidance available. It’s important to arm yourself with facts, not fiction, when it comes to practical matters, while not forgetting to take care of yourself emotionally too.
Gemma Nimmo is a Solicitor, Anderson Strathern
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