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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.


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Scotland - can she ask for his pension up front?

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25 Sep 12 #357817 by Fiona
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You can only divorce under the simplified procedure if there are no outstanding financial matters. If you apply on the basis of two years separation without the consent of the other party they are given the opportunity to object to the divorce going through on the basis there is no financial settlement so they can claim their share of the matrimonial property.

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27 Sep 12 #358205 by penny10p
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Are you saying that even after 15 years she could contest the divorce? I believe that in england you can divorce without the other party''s consent after 5 years. Is it different in Scotland?

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27 Sep 12 #358211 by Fiona
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It is different in Scotland. There is only one divorce decree which is granted after the finances have been settled. Usually it isn''t possible to make financial claims after the divorce and to use the Simplified Procedure there can''t be any outstanding financial matters.

If there are outstanding finical matters the Ordinary Procedure has to be used. In that case the application for divorce can be made on the grounds of 2 years separation without consent. The defender then has the opportunity to state their intention to make financial claims.

When no agreement is reached there would then be an option hearing to sort out the finances and if there was still no agreement the case would proceed to a proof hearing. At the proof hearing the sheriff would make the financial orders and rubber stamp the divorce.

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28 Sep 12 #358302 by penny10p
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In that case he should apply for a divorce on the grounds of over 5 years separation without consent and leave it to her to make a financial claim. If she has managed for 15 years without a financial settlement I can''t see how she could persuade a court that she needs her portion of the pension up front as a lump sum. I would definitely be bouncing the ball back into her court and see what happens!

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28 Sep 12 #358399 by Fiona
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Sorry 5 years was a typo. It''s two years separation without consent here.

In Scotland as long as a couple remain married there is no time limit for claiming assets accrued between the dates of marriage and separation. No financial claims can usually be made after divorce. This case is relatively straight forward and it would be madness to go to court as legally there is nothing to argue about. Unlike England & Wales there is certainty in the law. It''s likely to be quicker, cheaper and less hassle to agree a settlement and then apply to divorce under the Simplified Procedure.

First of all there needs to a valuation of the pension fund. In Scotland there is a formula for apportioning the pension. The value of the pension is divided by the total number of years contributions were made to the pension and that figure is then multiplied by the number of years contributions were paid into the fund during the marriage. Once the value of the fund apportioned to the marriage has been determined it is shared "fairly," usually 50:50.

If the value of the pension apportioned to the marriage is low, as Ruby said, it makes no sense to pay £2-3k or whatever the fee for sharing pensions and it could be worth raising the money to pay the ex-wife off.

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