SOME COMMON FAMILY LAW MYTHS
“There’s no need for a solicitor, we can agree things ourselves”
It is important that you are advised as to the potential rights you may have and how the law applies to your particular circumstances. Separation and divorce can also have important consequences for inheritance and property rights. We would recommend that you consult a solicitor at an early stage in order to ensure that any settlement or division of property you agree to is fair and reasonable. You are always free to reach an agreement with your spouse or partner but we caution you to do so with the benefit of impartial legal advice.
“We’re as good as married because we’ve been together for 20 years and have kids together”
There is in fact no such thing as a “common law” wife/husband. There may be limited financial claims open to you as a cohabitee at the end of your relationship, but these rights do not equate to the rights of a married couple on divorce. It is vital that you are aware that you only have one year from the date of the end of the relationship in which to make a Court application. For financial claims you may be in a financially vulnerable position following the breakdown of your cohabiting relationship. It is important to seek legal advice as soon as possible.
“I’m entitled to half of everything”
The law on financial provision on divorce is complex. Each case is decided on its own merits and according to the specific circumstances which exist. Generally the law in Scotland seeks to ensure a fair division of property – but a fair division does not always mean an equal division. There may be special circumstances which mean that one spouse gets a greater than 50% share of the matrimonial property. For example, if one spouse invested money they possessed before marriage into the family home, they may be entitled to a larger share of the matrimonial property to balance this. This is a complicated area of law and it is important that you obtain independent legal advice on your particular circumstances.
“I can transfer my property to someone else to prevent my spouse claiming a share of it”
In a word, no. The date of separation is a matter of fact, and is usually agreed by a separating couple. This is the date on which all property, excluding the family home, is valued. In order to assess what might be a fair and reasonable division of matrimonial property, each party must disclose all property owned by them. If there is not voluntary disclosure there are methods which can be used to force this disclosure in the Court procedure. If you transfer property after the date of separation it will not mean that it is out of the reach of your spouse. You will still have to account for the value of it. You may also be penalised if you can be shown to have deliberately reduced the value of matrimonial property. The Court may decide that you should receive a lesser share to account for this.
“He cheated on me so I will get a greater share of the property”
The behaviour of each party to a marriage does not usually impact on the financial division of property, unless this behaviour can be shown to have reduced the value of any property. Generally speaking, the grounds of divorce, such as unreasonable behaviour, or adultery, have no bearing on how property is shared. This is a separate issue.
“Children always end up living with their mother after a divorce”
This is not true. The primary carer of a child is the parent who continues to live with the child following a separation or divorce. This can be the mother or the father. Contrary to popular opinion the Courts do not show a preference for mothers. The welfare and best interests of a child are fundamental. In the event of a dispute over where a child should live this is the basis for reaching a decision. There will be multiple issues and personal circumstances which are important, and you should take independent legal advice if you have concerns.