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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Do you need help sorting out a fair financial settlement?

Our consultant service offers expert advice and support to help you reach agreement on a fair financial settlement quickly, and for less than a quarter of the cost of using a traditional high street solicitor.


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17 Sep 07 #3520 by scottishlady
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Thanks Chris.... but I thought the registering of the marital homes rights thing prevented him from selling the house from out under me????

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17 Sep 07 #3527 by CollaborativeFamilyLaw
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Are you actually living in Scotland, If so treat the comments on this forum with great caution as Scots law is very different fron family law in England and Wales.For example there are no divorce petitiond in Scotland, spousal maintenance continues for a maximum of three years and inherited wealth are never included in the family pot available for distribution. There follows a short summary of Scottish family law...I hope it is useful:

Sources of Law

The Family Law (Scotland Act) 1985.


Divorce (Scotland) Act 1976


Children (Scotland) Act 1995


Case law also relevant

Jurisdiction

Brussels II applies- EU Member States.

Domicile and Matrimonial Proceedings Act 1973- Related Jurisdictions

Domicile and Habitual Residence

As per England and Wales. A person’s domicile will be Scotland.

Conflict of Law/Applicable Law to be Applied

Lex fori - with the possibility to take account of foreign law in certain cases.

Pre-Nuptial Agreements

The Scottish Courts are very reluctant to interfere with properly drafted pre and post nuptial agreements.


Separation Agreements can be registered and will then be binding.

Divorce

The principal ground for divorce is irretrievable breakdown of marriage which is established on one of more of the following facts. Adultery, behaviour, 1 years separation with consent to divorce, 2 years separation.


Divorce is initiated by the serving of writ or summons.


There is no requirement to be married for a year before you can file for a divorce.


There is no separate Decree Nisi and Decree Absolute.

Finances/Capital/Property

The court will apply the framework of principles set out in the Family Law (Scotland) Act 1985. The overriding principal is fair division of matrimonial property and a fair division is deemed to be an equal division unless there are special circumstances to justify otherwise.


The norm would be a 50:50 division of matrimonial property regardless of the length marriage, although other principles may be used to achieve an award in excess of a 50:50 split.


“Matrimonial Property” includes all property belonging to the parties at the date of separation which was acquired by them, otherwise than by way of inheritance or gift from a third part between the date of marriage and the date of separation i.e. inherited and pre acquired assets are excluded from the definition.

Finances/Maintenance

Periodical allowance (maintenance) may be awarded if payment of a capital sum is insufficient to satisfy the payee’s requirements and if there has been a need for continuing support.


It is unlikely that maintenance will be for any more than three years from divorce unless there are exceptional circumstances and no account is taken of different earning capacities.

child maintenance

As per England and Wales.

Cohabitants

Cohabitants enjoy fewer rights than spouses. The court has no jurisdiction to distribute property as it can do on divorce.

However, a person can apply to court for a limited financial settlement from their former cohabiting partner. The application must be made within 1 year of the cohabitation ending.

Civil Partnership/Gay Marriage

Governed by the Civil Partnership Act 2004.

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17 Sep 07 #3528 by scottishlady
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Thankyou for that information - but, no, I do not live in Scotland (note to oneself - change username)...
although, I certainly want to return to Scotland.... but, hey, that's a little down the line yet!
I was married, and have lived in England for 20 years now....
Kind Regards
Karen

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17 Sep 07 #3530 by CollaborativeFamilyLaw
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Thanks Karen, you need to spend a couple of hours with someone who will take you through the background to your case and advise you of your options etc.

If costs are a concern make sure you speak to the familt lawyer before the appointment a agree eith a fixed fee for the meeting or an hourly rate which you are comfortable with (see my previous post on how to choose a solicitor).

Sadlty each case is different and on the info available it is just not possible to say when and in what circumstances your home will be sold. One thing is certain however, it can not be sold without a court order or the agreement of your husband.

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