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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.


Advice on Separation/Divorce in Scotland Please

  • oxclairexo
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09 May 12 #329430 by oxclairexo
Topic started by oxclairexo
Current Situation.My husband (44) and I (33) will have been married 3 years in August We are resident in Scotland, and have a 16 month old Son.

After what should have been a minor disagreement to be discussed rationally, my husband walked out. He came home after several hours but hasn’t spoken to me since despite my best efforts to discuss things. His only response is that he will talk once I have apologised. He has not spoken to me or come to bed now for 3 days. This is the last in a long line of paranoid episodes where he thinks I don’t trust him with our son.

I could apologise just to break the stalemate, and probably will, but regrettably I have now reached the point where I can no longer continue with the relationship and wish to separate, sell our house and move on.

I feel incredibly guilty already because of my son and because of my husbands health issues. I just wanted a happy little family and can’t believe I’m facing divorce after only 3 years – I suppose no one ever does.

I have included a bit of history below. Not sure what is relevant and I have tried to keep it unbiased.

Apologies for the lengthy post.

History
My husband (partner at the time) moved into the flat I owned (my name only) ca. 2 years before we were married. During this time he never paid any rent or contribution to household bills (except groceries and his own car). Shortly before we were married he was signed off work with depression and took voluntary redundancy (he hasn’t worked since).

Before we were married, we decided to buy a house (in joint names) and put in an offer before we were married. Actual completion of flat sale/house purchase went through 2 months after we were married. When we bought the house the deposit (50K+) was paid for by me using my savings and proceeds from my flat.

I also had 5K in premium bonds purchased before the marriage which with were used to fund home improvements. Estimate my husband also had savings of ca. 5K which were again used for home improvements.

After buying the house and taking redundancy my husband was supposed to take 3 months out to do some house renovations, get back on his feet, and return to work. This never happened nor was there any attempt by him to find work. I pay the mortgage, household bills etc. and pay my husband £500 per month by direct debit.

Unknown to me, my husband had ca. 3K in debt from cumulative unpaid bank charges (acquired before and during the marriage). This was eventually cleared using a gift from his Aunt meant to go towards home improvements.

My husband was then diagnosed with a circulatory disease whilst I was pregnant affecting his mobility and is now registered disabled and gets disabled living allowance which pays for his car. Other than child benefit no other benefit is claimed.

When I had our son I took 8 months off work (as an engineer) and then returned part-time (3 days per week). My husband now looks after our son during the day on those 3 days but has little involvement in the evenings or on the 4 days I’m at home. When he is not looking after our son, he sleeps excessively, plays computer games, but very little else. He does cook most evening meals however I do the majority of other household chores.

My husband takes prescribed medication both for his circulatory disease and for clinical depression. He has bouts of depression which seem to come in cycles and are getting worse.

My husband both drinks excessively and smokes cannabis every evening. He starts drinking as soon as our son goes to bed but only uses cannabis after I have gone to bed. I typically drink 1 bottle of wine per week over 2-3 evenings.

He has asked for a divorce and told me he will kill himself on 2 occasions, albeit under the influence.

To the best of my knowledge there is no third party involved.

Questions
My Absolute priority is to keep my son resident with me. Although I think I have a strong case is there a chance courts could rule in his favour given that I am the sole breadwinner and the current childcare arrangements? I can see my husband loves our son very much and would want him to have regular contact, although not overnight unsupervised due to substance abuse.

After the separation I would like to stop work and return to my hometown (40 miles away unfortunately) to stay with my mother. I would then hope to find a job locally once my son starts nursery aged 3. My mother is 56 and retired and would help with childcare. Alternatively I could keep my current job and still have my husband look after my son the 3 days. In many respects I can see this is fairer to him and initially less disruptive to my son but in the long term I believe the most stable environment will be if I return home. Does any of this make a difference to the outcome?

Can I use unreasonable behaviour as grounds?

Assuming my son stays resident with me am I likely to still have to pay maintenance to my husband?

Again, assuming my son stays resident with me, when the house is sold will I be entitled to recover any of the money I paid upfront before the proceeds are split?

Does anyone have any advice on how to break this to my husband? Don’t want to just take my son and go but frightened of what the reaction will be.

Can anyone give an indication of likely legal costs?

Is there anything else I need to be aware of going into this?

Any advice much appreciated.

  • rubytuesday
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09 May 12 #329438 by rubytuesday
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Welcome to Wikivorce.

Fault-based divorces in Scotland are very easy to defend, and the onus of proof is then upon the pursuer to prove the alleged behaviour took place. Most couple choose to use either 1 year or 2 years non-cohabitation as grounds for divorce, mainly as the finances and child-related issues need to be sorted out and agreed upon before divorce can begin. The period of non-cohabitation gives couples the time to agree upon the outstanding issues before a Writ is issued.

If you do decide to move away, what would be your plans for proper contact between child and father after the move? Given that Dad has a high level of involvement currently, you would be removing this if you moved 40 miles away. You can''t just take the child and go, this would need to be properly thought out beforehand.

There is no spousal maintenance in Scotland, there is however a general obligation for spouses to support each other where its reasonable and possible - if he has been dependent upon your income to help support him and he has no other source of income, then he could apply for aliment.

There are four steps which should be considered before making a decision about the financial arrangements. Please note that matrimonial property is that which is accrued between the date of marriage and the date of separation.

1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.

2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.

3. Determining any non matrimonial property by looking at the individual assets and seeing the circumstances in which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property.

4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It''s best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.

Assets are usually split on a fairly even basis, with a Clean Break underpinning the split, ie no party can make any future financial claim upon each other afterwards.

The question of the money you put into the house is quite a grey area, on one hand it was money that was your prior to marriage, but on the other, it was used to purchase the matrimonial home, and you had some years of co-habitation before marriage. I don''t think it would be unreasonable of you to try to argue that you should receive the money invested back .

And as to how to break this to your husband, well, you know him and know how to talk to him, but given his history of depression, I would suggest being gentle rather than just leaving.

Is there no way that this minor disagreement could be resolved, perhaps with the aid of family mediation?

  • Fiona
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09 May 12 #329455 by Fiona
Reply from Fiona
Using unreasonable behaviour can cause unnecessary conflict and expensive legal fees. Most divorces in Scotland are granted on one of two separation grounds, separation with consent from the other spouse after one year and separation without consent. There is strong burden to prove unreasonable behaviour and you need evidence from a third party. In any case realistically it takes a year or so to negotiate a financial settlement and usually divorce isn''t granted until the finances have been resolved and arrangements for children are in place.

Being a breadwinner doesn''t purchase the right to have contact or a child living with you. Parents have Parental Responsibility and Rights and if they cannot agree what is in the best interests of a child either can apply to court to resolve the dispute. Generally it is agreed that a child''s sense of security and established bonds shouldn''t be disrupted unless the child isn''t satisfactorily. A court considers evidence such as the existing working/child care patterns.

In some cases where both parents are deemed to be involved equally in child care residence is shared and it may be difficult relocating the child.

As far as the finances are concerned the starting point is that assets accrued between the dates of marriage and separation, apart from inheritances and gifts, form the matrimonial assets to be shared. The matrimonial home is usually considered a matrimonial asset regardless of where the assets originated from to purchase it. Assets are shared "fairly" according to the principles set out in s9 Family Law (Scotland) Act 1985, usually fairly 50:50.

As the marriage is short you may be able to argue that your contribution to the former matrimonial home was an exceptional circumstance justifying a larger share in your favour but that will need to be balanced against your husband''s dependency. His need and your ability to pay are factors when determining aliment during separation or periodic allowances after divorce. Your ability to pay will be determined by your disposable income once living expenses have been deduced from your income.

A family solicitor in possession of all the details should be able to tell you where you stand and what options are available. You can then negotiate an agreement between yourselves or with the help of a mediator from an informed position.

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09 May 12 #329463 by Fiona
Reply from Fiona
PS As someone who until recently was a chartered engineer I would say be careful about giving up a part time job.

  • oxclairexo
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09 May 12 #329483 by oxclairexo
Reply from oxclairexo
Thanks for the replies.

I''m actually glad using unreasonable behaviour is not the best way...would be unpleasant for everyone.

Wrt being the main breadwinner I actually meant that I thought this could count against me not in my favour i.e. that my husband could be viewed as the primary caregiver.

Once the current bad patch is resolved to the point that we can sit down and discuss things properly I will try to talk it over with him...he might even feel the same.

Will consider mediation.

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