Finances after Separation
A girl can change her mind – but not when it comes to a divorce settlement in Scotland.
The law on finances after a separation is aimed at giving certainty and a ‘clean break’ – and there are understandable reasons why.
Litigation between a separating couple can easily become a proxy war, with neither side willing to be seen to budge. Even if a peace treaty is signed, this would not be worth much if the scars of battle could be re-opened by one side lodging an appeal.
But one effect of this certainly is that the outcome, once decided on, cannot be easily overturned.
Two Routes – Same Law
In separations, the financial aspects are generally decided in two ways – either a deal is reached, which is reflected in a legal document, or if agreement is impossible, the court then has to rule on who should get what.
The financial deal will be captured in a Minute of Agreement, which both spouses have to sign, before witnesses, and this is then registered in Edinburgh, to avoid the risk of this “going missing” or some other fate befalling it. Even in the digital age, registration is still seen as the most reliable way to avoid disputes.
The Minute of Agreement will have certain clauses about what has been disclosed in terms of finances, what legal advice was taken, and what should happen if one side decides they no longer want to stick to it. For example, if a couple decide they will sell the house and then one side decides to drag their feet or refusing to participate, then the local Sheriff court will have the power to implement the agreement in their stead.
If a deal has not been possible, then it will fall to the court to rule. The majority of divorce actions do not end up with evidence having to be heard on finances, but the court is always there if required to make a decision.
How Does Court Decide?
In Scotland this will generally again be the local Sheriff court, where a special scheme of rules contained in the Family Law Act 1985 will be applied. The start point of these is that there should be a 50-50 split of all assets – but there are numerous exceptions to this, and overall the court has to be satisfied the split is “fair”.
A common example is where there is a mother in a house with young children, who is unable to take on the full mortgage herself as she cannot work full-time, but where she would have difficulty housing the family elsewhere.
Although the rules are detailed, the Sheriff still has a large amount of discretion regarding how much should be paid – and that can often depend on how well each party presents their case. But the court can also be influenced by how each side conducts themselves, and that can come down to the credibility of their answers in court.
Speak Now or Forever Hold Your Peace
Whether it’s by means of a court Decree or an Agreement, the piece of paper will be difficult to overturn. There is limited scope to lodge any Appeal, and most attempts to bring a new court action to re-open the Agreement will be unsuccessful.
Saying that you feel differently now, that you did not understand the implications, or that the other side took advantage of your situation, will not be strong enough to allow the court to look at things again.
English Rules Don’t Apply
In this respect there is a marked difference from the higher courts in England, where recently there have been lucrative and high-profile victories for wives whose husbands thought they had obtained good outcomes, only to then be dragged back into court.
There are some exceptions to the general rule – if the other side have committed a fraud, or one side has been incapable medically of giving legal consent, then it may be possible to have a “re-run”.
But generally, to amend another well-worn cliché, if you agree a divorce settlement in haste, then you may repent at leisure.
Contact our Family Law Solicitors Glasgow & Edinburgh, Scotland
Beltrami & Company are conveniently based near Glasgow city centre but operate throughout Scotland. Any calls to our offices out with normal business hours can be dealt with by an experienced solicitor.