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Family law

Separation

We understand that the decision to separate is rarely an easy one.  We also understand that for many people the decision to separate may not even be their decision.  We can advise all separating couples whether you are married, in a civil partnership, or cohabiting.  Divorce is claimed to be the second most stressful life event, second to death, and it is therefore inevitable that it will be emotional and difficult.  With the right legal advice, it can be made much, much, easier.  It is our job to help you through this difficult period of your life and come out the other end looking forwards to the future.

Dissolution of a civil partnership

The same rules apply when couples in a civil partnership separate as they do to divorce and we can help you too.  The legal term is “dissolution” of your civil partnership but all aspects of “divorce” apply to civil partnerships too.

Options for divorce/dissolution of a civil partnership

There is one aim and that is to reach a resolution as to how your affairs will be dealt with after separation.  With the exception of Court, the aim is to reach an agreement with your partner which can then be written down, signed, and form a binding and enforceable contract between the two of you.  However, there are various options available to couples as to how they reach that resolution.  Which option suits you and your family will depend on a number of factors and we can discuss these with you and help you decide which one is best for you. 

Round the table agreements

Often couples have already discussed how they want to split their finances and care for their children going forward.  They may have agreed to sell the house, or that one of them keeps the house, and may already have closed bank accounts and split the proceeds.  Often couples have written their agreement down together.  This is great.  However, we would still advise you to seek the advice of a solicitor in order that you can fully understand the laws which apply on divorce and to make sure you haven’t forgotten to consider anything.  For example, did you know that your pensions, although they may not be immediately payable, have a value and can even be shared with you/your partner so that you/they can receive an income on retirement?  We can give you all the necessary advice to help you understand the law and you can make informed decisions about your future round the table with your partner.   

Once you’ve come to your agreement, you will need a solicitor to look over it and check it protects you in the future.  We can put your agreement into the correct legal form so that it is fully enforceable.

Mediation

Mediation facilitates good and respectful discussion between couples.  The mediator is highly trained to help couples reach agreement.  The mediator could be a non-legal mediator (Relationships Scotland offer a good mediation process) or a solicitor-mediator (www.calmscotland.co.uk) but they are always completely neutral.  That means that the mediator cannot act for either you or your partner. 

At the end of the mediation process the mediator will prepare a “mediation summary” which will outline any agreement you and your partner have reached.  You will then take that mediation summary back to your solicitors and they will prepare a separation agreement for you to make it fully binding and enforceable.   

We have trained mediators within our team who can assist you.  We can refer you and your partner on to a solicitor-mediator or we can act as your mediator (if we haven’t had any previous involvement in your case).   

Collaborative law

This is where you and your partner both instruct a solicitor to represent you but all negotiations between parties take place at joint meetings where you, your solicitor, your partner and your partner’s solicitor are all participating.  It is a very powerful process which makes sure that your hopes, dreams, concerns, fears are all listened to and that you and your partner both consider the greater needs of the family when coming to an agreement.  This process works particularly well where there are children in the family because it allows you to keep the children at the centre of all the decisions you make.   

It allows you to have some control over the process.  We find that most couples feel able to sit in the same room and discuss things with their partner but they like the comfort of having a legal advisor there to support them and to make sure they are making good decisions.  We find that couples are happier at the end of this process than most of the other processes and that they have a good and respectful relationship going forward. 

At the end of the process your solicitors will draft a separation agreement reflecting the agreement you have come to so that it is fully binding and enforceable.  We have a number of trained collaborative solicitors who can help you through this process. 

Traditional solicitor negotiation 

This is what most people consider will happen when they seek the services of a solicitor.  This process is flexible and it will usually involve a number of meetings between you and your solicitor followed by letters to and from your partner or their solicitor in an attempt to share information and reach agreement.  It can also involve joint meetings between you and your solicitor and your partner and their solicitor.  

Arbitration 

Arbitration is similar to Court in that you are asking a third party to make a decision.  An Arbitrator is essentially a private family judge (www.flagsarb.com) who is a trained solicitor, advocate or even a former Court judge.  The advantage of this over Court is that you can choose exactly what issues to bring to arbitration to ask for decisions about.  With Court you are asking the Court to look at all your affairs and make decisions about everything.  You may have been using the solicitor negotiation process well but you and your partner can’t agree on one matter that you simply cannot get passed in order to reach an overall agreement.  You can refer that one issue to arbitration.  You are also guaranteed that the judge will be someone highly trained in family law, something that you cannot guarantee with Court.  

Court

Going to Court is rarely what people want to do since it can be stressful, expensive and unpredictable.  Sometimes it is necessary, such as in domestic abuse situations where we need to seek protection for you from your partner, or in other situations where there is an urgency to do something such as seeking orders preventing your partner from selling the house or shares.  Sometimes couples attempt to reach agreement using one of the processes above but they can’t, and they then need to go to Court in order that a judge can make decisions for them.  We are regularly appearing in both the Sheriff Court and the Court of Session and can represent you. 

Jurisdiction

It doesn’t matter where you and your partner were married since, in Scotland, you can divorce where you or your partner are habitually resident.  So, if you are living in Scotland you can generally divorce in Scotland.  You can also divorce in Scotland if you are domiciled in Scotland.  “Habitual residence” and “domicile” have different legal meanings and tests and we can advise you on this.  It does mean that you may have a choice of country in which to divorce based on your habitual residence or your domicile (and that of your partner as well). 

We regularly represent expats from all over the world who remain domiciled in Scotland and can help you navigate the systems.  We don’t even need to meet with you in person as long as you can have your identity verified since all discussions can take place by telephone and email.   It may be that the Scottish rules on divorce offer you a less complicated and quicker resolution to matters than the country in which you are living. 

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