Family Law
Separation Agreements
Many couples separating hope to reach a negotiated agreement dealing with all or certain matters incidental to their separation without the need for intervention of the Courts. Negotiating an agreement can often prove less emotionally draining as well as much more cost efficient. Separation Agreements can deal with all child related issues as well as financial matters. Alternatively, they can be restricted to deal with either matter. Negotiated agreements need not be restricted to straightforward cases. Negotiated settlements can also be reached whether there are complex business assets or a high net worth of assets. The support provided by our Corporate, Commercial Property, Trust & Tax Departments act to strengthen the formidable negotiating skills of our Family Department members so that we can reach the best possible solution for you. If you have already reached an agreement with your former spouse or partner and simply wish that to be formalised, we can also provide that service. Once a negotiated agreement is formalised in a Separation Agreement, which would include important standard terms whereby both parties rights on succession and the like are waived, divorce can follow at any time best suited to the parties with the only order required from the Court being for divorce itself.
Collaborative Law
Collaborative Law is a relatively new negotiating forum for parties who hope to reach a negotiated settlement. Each party attends a series of meetings accompanied by their legal representatives with discussions taking place with a view to the parties reaching agreement on issues requiring to be resolved, including issues relative to any children and any financial matters. Collaborative law differs from mediation in that each party has their own legal representative present. In mediation one independent and impartial third party facilities discussions between parties direct. In mediation, unlike in the collaborative law process, neither party has the support of their own solicitor to act to secure their top priorities first and foremost. With collaborative law, if parties cannot reach agreement on all matters and they wish to move forward to litigation, both legal representatives must step down and the parties require to obtain new legal representation in order to take matters to the Court. This in itself as a sanction is designed to encourage all of those involved in the collaborative process to try to reach agreement on all outstanding issues.
Divorce
In Scotland, there is one ground for divorce. That is irretrievable breakdown of marriage. There are four ways to evidence the irretrievable breakdown of a marriage.
- Adultery.
- Behaviour - this is behaviour which is such that it is unreasonable for one party to be expected to co-habit with the other.
- One year's separation with consent of the other spouse to divorce.
- Two years' separation without the requirement of consent.
National and International Divorce Aspects
Within the UK
Should you raise your divorce action in Scotland or England? Do you have a choice and if so which is best? English law is an entirely separate legal system from Scottish Law. There can be significant differences especially in relation to the question of financial provision and it can be hugely advantageous to seek to ensure that any divorce is dealt with in one country rather than the other if there is a possible choice between the jurisdictions. The Brodies Family Law Department have strong links with many of England's top Family lawyers and are able to obtain advice on your behalf on how you might fare in England as opposed to Scotland. If it would be more advantageous to deal with your divorce in England, we can refer you to one of our close contacts there. Conversely, we receive regular referrals from England where it might be the case that a parties divorce would be better dealt with here in Scotland.
Within the EC
European Law determines jurisdiction where it is an option for parties to litigate in two different European countries. If this applies to you it is important to take advice on raising proceedings urgently to ensure that the correct and most advantageous forum for you is secured.
Other parts of the World
What happens if you have two competing divorces - one raised in Scotland and for example one raised in America? Which action trumps the other? Where are you better litigating in your circumstances? Through our extensive contacts within the International Academy of Matrimonial Lawyers we can obtain the best advice to you as to which is the correct and most advantageous place to try to run your case.
Financial Provision - by negotiated settlement or on divorce
Complex business assets
We have extensive experience in divorces involving complex business assets, whether they be partnerships or private companies. We have strong support in-house from our Tax, Corporate and Commercial Property Departments to ensure that you get the best advice should your business become part of the dispute.
High Net worth cases
We regularly act in many divorce cases where the net assets are well in excess of £1m. With strong support from our Tax, Trust, Corporate and Commercial Property Departments we can advise you on your best options whether your wealth is sitting in the bank, in a business, in property, in land or tied up in some other way.
Smaller Money Cases
We are just as adept at providing advice and running cases where there's less money to go around and we pride ourselves on giving economic and pragmatic advice to fit the circumstances.
Disputes involving Children
Parental Rights and Responsibilities
Our Family lawyers are only too aware of the sensitivities required in cases where Parental Rights are in dispute. We treat Parental Rights issues, such as residence and contact, with the sensitivity that they deserve. We will also advise you on your responsibilities in respect of child maintenance, maintaining personal relations with your child and playing an active part in their upbringing.
Contact
If you wish contact with your child, we can advise you on all of the options. We can advise you on whether this should be negotiated between solicitors, whether you should be attending mediation or whether you should be going straight to Court. Child care issues are complex matters, and no two cases are the same. We can advise which is the best option to pursue contact. We also act for parents who are trying to reduce or resist contact. We have considerable experience acting either side of the fence and can give you a balanced view of what your options are and if we go to Court, the likely outcome.
Residence
We have a great deal of experience in dealing with residence disputes. A dispute over where a child should live can be one of the most distressing aspects of a breakdown of a relationship. We can help guide you through this difficult time. We can give you the practical and legal advice you need.
Maintenance and School Fees Disputes
We regularly act in relation to either negotiating or litigating over the question of child related maintenance and payment of school fees.
International Child Abduction
Broadly speaking, where a parent removes a child from the country of its habitual residence without the consent of the other parent that is classed as an International Child Abduction. The parent who has not consented to removal of the child from the country of its habitual residence may be able to apply to the Courts for return of the child under one or a combination of various EU or worldwide conventions. We have the expertise to deal with applications for return of a child to Scotland from abroad or conversely from Scotland to abroad. With our contacts within the International Academy of Matrimonial Lawyers we will ensure that the very best resources are available to obtain the prompt return of your child. We are equally as able to act on your behalf in opposing an application for return of a child.
Non-Contentious Family Law
Pre-nuptial and Post-nuptial Agreements
Pre-nuptial and Post-nuptial Agreements setting out how a couples finances will be divided if their marriage fails are becoming increasingly popular in Scotland, particularly for those with wealth established prior to the marriage and those entering into second or third marriages where they wish to protect their wealth in full or in part for their children of a previous marriage. In Scotland Pre-nuptial Agreements are generally thought to be enforceable and binding although that can depend not only upon where it is drafted and signed but also where any divorce proceeds. We have the expertise to fully advise you on the appropriate terms of such agreements and to prepare them on your behalf so as to protect your interests in the best possible way.
Wealth Preservation Advice
Advice given to individuals, as part of a wealth preservation exercise, can on occasion result in various assets, which would otherwise be excluded from the matrimonial pot, being susceptible in the event of a divorce. We will work with our Private Client and Corporate Department to advise on the risk inherent in such an exercise, together with what steps can be taken to minimise, or even limit that risk.
Co-habitation Agreements
The importance of Co-habitation Agreements is set to rise following the Family Law (Scotland) Act 2006, which came into force in May 2006. Co-habitation Agreements have always been advisable where two parties buy a house together in joint names. In the majority of cases most parties will not be making an equal contribution to their purchase price and the running costs of the house. If parties fall out and the house is held in joint names, in the absence of a Co-habitation Agreement the other party can require that the house is sold and the net free proceeds of sale would automatically fall to be divided equally between them except in exceptional circumstances. Even in exceptional circumstances, the party who contributed more towards the purchase, running or improvement costs is more than likely to face a difficult and costly Court battle, with no guarantee of success, in order to redress the differing balance of contributions made. A Co-habitation Agreement can ensure that in the event of the breakdown of a relationship, not only are the day to day living costs regulated, but the ultimate fate of the house and the division of the proceeds of sale (and any other joint assets) is agreed in advance.
The 2006 Act for the first time in the UK brings in limited rights for unmarried co-habitants, even where there is no joint ownership of property. These rights will be open to both heterosexual and homosexual couples. In certain circumstances, a co-habitant can make a financial claim against their former partner in respect of their relationship in a way that is almost akin to seeking financial provision on divorce. The 2006 Act also introduces for co-habitants limited rights to each others estate upon death, although only upon the other co-habitant dying without leaving a will. Such a claim could of course potentially prejudice any claim by the children of the deceased. To ensure that your assets are protected against any claim made by someone who becomes a former co-habitant a Co-habitation Agreement will prove invaluable. Making a will or having a clause within your Co-habitation Agreement can also protect against claims made following death of one party.
Civil Partnerships
As of 5 December 2005, same sex couples have been able to register as civil partners and as a result acquire rights and obligations similar, but not identical, to those of married couples. Whether you are thinking of registering a civil partnership and wish advice on how to do so, you wish advice on the effects of entering into a civil partnership, financial and otherwise, or you wish to know about the financial consequences of dissolution of a civil partnership on breakdown of the relationship we have the expertise to help. For the same reasons as parties contemplating marriage, or even those already married, should consider entering into Pre-nuptial or Post-nuptial Agreements, those contemplating or already registered in civil partnerships should consider entering into formal agreements regulating their rights and responsibilities in respect of one another in the event of a breakdown of their relationship.
Key Contacts
