There are many misunderstandings about divorce. However, just because some of them are often repeated, it doesn’t mean they become true. In this article Sally Swinney, a Partner with Blackwood & Smith and member of Consensus Collaboration Scotland, dispels some of the more common myths.
1. You can get divorced whenever you wish.
Simply saying you’ve had enough and no longer love your spouse isn’t sufficient. There is just one ground for divorce in Scotland: irretrievable breakdown of the marriage. This can be evidenced by separation after one year with your spouse’s consent, separation after two years without your spouse’s consent, adultery, or unreasonable behaviour.
2. Your solicitor is very aggressive, so you will get a better settlement.
Hiring an aggressive solicitor who is not interested in reaching a fair settlement for you both could end up in an acrimonious, stressful battle in court - and a large bill to boot. Consensus Collaboration Scotland legal professionals are trained to help resolve matters amicably, offering a non-confrontational way of agreeing the legal and practical arrangements. We minimise conflict, help you put your children first, ensure you make good financial choices for your future, and minimise the emotional damage of your separation.
3. You will have to go to court.
Collaborative practice offers separating couples a way to agree their legal separation arrangements and divorce without a court battle and with minimum conflict.
4. The children automatically stay with their mother.
Society has changed considerably in recent decades, with parenting roles having become much more fluid and flexible. It is not a foregone conclusion that children will live with their mother and see their father every other weekend. Couples are increasingly adopting a 50/50 approach.
5. There is a standard formula for calculating a fair division of our assets.
The agreed outcome depends entirely on your own particular circumstances and needs. There is not a set calculation.
6. Your savings are yours alone, and your spouse’s debts aren’t your problem
Often a spouse will say that they have been saving during the marriage and the savings are in their name, so they belong solely to them and don’t have to be disclosed. This is not the case; all financial assets must be disclosed. Many people also believe that debts in their spouse’s sole name aren’t their concern. However, as with assets, all debts must be considered as part of the financial settlement.
7. You bought the family home in your name only, so it is not an asset of the marriage.
All assets must be disclosed. The property could be an asset of the marriage irrespective of whose name it is in.
8. Leaving the family home means you no longer have any rights to it and don’t have to pay the mortgage.
The family home remains a marriage asset. If the mortgage is in both names you are jointly and severally liable for the full amount of the loan.
9. The pension you accrued before getting married will not be taken into account
This is a grey area, and it will depend how long you have been married and your individual circumstances.
10. You have lived together for many years as common law partners, so marital law applies in your case.
As there is no such thing as common law marriage in Scotland, there is no automatic right to share assets. However, Consensus Collaboration Scotland professionals can still help co-habiting couples agree a fair split of joint assets and arrangements regarding any children.
If you’re ever in any doubt, Consensus Collaboration Scotland professionals will always keep you right in all the legal, financial and emotional aspects of divorce.
If you are considering a separation or divorce and would like further information, please contact a Consensus Collaboration Scotland professional.