Before divorce comes separation and, in Scotland, the Scottish law of separation and divorce applies. Much of the law that you will read on the Internet is English law. Forget it all. It couldn’t be more different.
Most people assume that to be “legally” separated you must live in separate houses. This is a reasonable assumption but completely incorrect.
To be separated means that you no longer live together as husband and wife. This assumes that you are married, so if you only living together, look away as entirely different legal issues apply to you! I may well blog on why ladies, particularly, should get married but that’s for another time.
Anyway, to be separated, all you need is that neither you nor your spouse offer to each other the normal dividends of being married. This means, for instance, no sexual intercourse, no washing by her of his clothes, no tinkering by him with her car, no cooking either way unless it is for a family meal for the benefit of the children and so on.
Effectively, you will happen to live in the same house and you can cooperate so far as the children are concerned but, in all other respects, you must be like lodgers in your relationship to each other.
This is pretty difficult to achieve but many have managed it and with the credit crunch, there are growing numbers who are in the ghastly situation that they have no choice. This is due, simply, to the plain fact that maintaining two households is much more expensive than maintaining one.
For others, their marriage may have imploded but the children are still there and, particularly in their circumstances, the focus of their life. For that reason, they are prepared to sacrifice a great deal and put their lives on hold for a while. Even if they could afford to maintain separate households, they don’t want to, for the sake of the children.
It is quite possible for such people to have the benefits of a legal separation without the emotional effects of a physical separation.
That leads me onto what exactly is a “legal separation”. There is a legal document called a “separation agreement” but writing is not required for a separation to have legal effect. You are separated “legally” when your relationship with your husband or wife is of the character that I described at the beginning.
Not everyone descends from love to hate and so it quite possible for a perfectly reasonable relationship to develop which is not one of love but may, yet, be of mutual respect.
Having said all that, it is much much better for all parties if they can lay down an agreement in writing. This requires both parties to go to see a solicitor. I don’t recommend doing it yourself because as Donald Rumsfeld said “…there are also unknown unknowns. There are things we don’t know we don’t know.”
For instance, I always astounded by the number of men who don’t realise that their wives have an entitlement to a share in their pension and the number of wives who think that all that jewellery amassed during the marriage should not be counted as part of the family wealth. If you don’t know what can and should be shared, you may find yourself rueing the day you signed that agreement!
A solicitor will ask for a list of everything that you have and your spouse has and the solicitor will work through that list explaining the rules that apply to each item.
The separation agreement should also deal with maintenance issues, childcare and inheritances, amongst others. It is a good protection and, very importantly in my view, alleviates the anxiety and heightened emotions that a split brings.
One final word of advice – the date of separation is a very significant date and, if you are thinking about separating, particularly in the same household, you need to take good legal advice at an early stage because it can affect the financial outcome quite significantly.
Separation prior to divorce is emotionally exhausting. I have had many clients say “my head is mince”. They, however, have had the good sense to come to see me.
Advice about separation and divorce is, no doubt expensive but probably cheaper than making a mistake. Many solicitors will offer a free diagnostic interview and I suggest you ask for that before committing yourself because you will get a feel for the solicitor and whether you are going to have a good relationship. It’s not as important as a marital relationship but if there is no trust and confidence between you and your solicitor then you are throwing your money away.
Bruce de Wert
I offer a quick , private and inexpensive divorce service for those with children under 16 who have sorted everything out. Reviews of this are is to be found at www.MyScottishDivorce.co.uk
Disclaimer: A blog is not legal advice. You should check your personal circumstances with a solicitor as small details can make a difference!