It has been hard to escape the divorce metaphors in recent months as our Prime Minister, Theresa May and the European Commission President, Jean-Claude Juncker have embarked on a series of complicated negotiations to agree the basis on which the UK will leave the EU.
Most Scots who separate from their spouses are encouraged by their family lawyers to seek to negotiate a financial settlement by way of conventional negotiation or by use of one of the other main dispute resolutions options, such as Collaboration or Mediation. Court action should be regarded as a last resort although it has its place in high conflict disputes or in situations in which one of the spouses refuses to co-operate.
At the end of negotiations it is normal to reflect the agreed settlement terms in a legally binding contract – often known as a Separation Agreement. This can be a straightforward document or in cases of complexity it can run to many pages. It may include clauses addressing business interests, residential and commercial properties, school fees, trusts, pension sharing and a range of other issues.
In cases involving child or spousal support the agreement will typically include provision for variation on a material change of circumstances of either of the spouses or of the children. The most important feature of the agreement is to provide certainty and to seek to reduce the scope for future disagreement. The agreement usually smooths the way for a subsequent uncontested divorce application ending the legal relationship between the parties. Unlike many other jurisdictions (including England) the practice in Scotland is to finalise the financial and children arrangements by private agreement outwith any formal Court process.
I am sure that the work will already be well underway to document the complex Brexit agreements. Whether acceptable wording can be found to cover every eventuality in that divorce remains to be seen.
If you require any advice in relation to financial settlements under Scots law please do not hesitate to me or anyone else in the team.
On December 14, 2017