How do you start divorce proceedings?
Partners go into relationships without knowing what might happen. There is a school of thought that starry-eyed lovers should be sent on a course about the law of marriage before they get together.
Many solicitors offer a free consultation to someone contemplating separation. This often means disabusing the client of myths. Just because a pension is in the name of one does not mean the other does not have a claim.
One spouse paying child maintenance does not get access to see the children if it is not in their best interests. Just because the house is in the name of one partner does not mean he/ she can put the other one out like a lodger.
Once mistakes are out of the way, the solicitor can get a full inventory of financial/property assets, debts, and apply the Scottish legal principles of fair division, then try to negotiate settlement.
The outcome must be realistic. Perhaps a family business went wrong and money was lost, or one partner became ill and could no longer work. Maybe one partner has made a fortune, and that has to be accounted for – the rule is that whatever the financial worth of the couple at the date they separated, that is the basis for dividing everything.
There are lots of sub-principles. A spouse looking after young children may get the house but pay a share back to the other when it is later sold.
A civil partner with a big work pension may have to make over a calculated share of that to the other. Bank savings may be shared equally or on some other basis if, say, the saving period has been long but the marriage short.
Unlike money and property, children are not regarded as goods to be bargained over. They have their own legal status and whatever arrangements are put in place for them must
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be for their best interests, not to even up scores between parents.
In marriage, civil partnership and cohabitation, it is best by far to negotiate agreement to regulate the breakup and avoid contentious court action. No one will get everything they want.
The best results are when open communication, common sense and respect remain in play. It is nowadays almost unheard of to throw mud by way of divorcing on the ground of unreasonable behaviour or adultery.
The law allows divorce on the basis of living separately, so both partners have space to co-operate without the distraction of blaming one another for bad behaviour. The family has split, that is bad enough.
Consulting a solicitor early on will help on these matters, as well as timescales, costs and how to face the undoubted pressures and unpleasantness of even the most civilised separation.