With Pride Month upon us, as family lawyers we turn our attention to the legal issues and support that is available to those from the LGBTQ+ community. Since 2004, it has been possible for same sex couples to enter into civil partnerships and from 2014 to marry. That brings with it the possibility of dissolution of civil partnership or divorce. It is important to note that since June 2021, it has also been possible for opposite sex partners to enter into a civil partnership. The law governing financial provision on the breakdown of a marriage/ dissolution of civil partnership is found in the Family Law ( Scotland) Act 1985 and this applies both in relation to same sex and opposite sex partners.
What do I do if my marriage/civil partnership breaks down?
This can be an uncertain time and understanding your rights from the outset can help to alleviate some of the anxiety arising from this uncertainty. Obtaining legal advice at an early stage is recommended. A specialist family lawyer can guide you through the process and discuss with you the child and financial matters arising from the breakdown in your relationship and how best to address these.
What if there are children of the relationship?
The arrangements in respect of the children of the marriage or civil partnership are ideally resolved between the couple themselves. The use of the Collaborative process or Mediation can also assist parties in coming to an agreement regarding the care of the children. Whilst the court can intervene in disputes relating to the children, this should be regarded as a last resort.
Can I be forced to leave the family home?
As a spouse or civil partner, even if you do not own the family home, you have occupancy rights in the property and cannot be forced to leave, save for in certain circumstances.
What will I be entitled to financially?
The starting point for a family lawyer is that we look at and obtain valuations for the assets held by the couple at the date on which they separate ( sometimes referred to as the 'relevant date'). Assets that were acquired prior to the marriage/ civil partnership (with the exception of a property purchased before the marriage/ civil partnership for use by the couple as a family home or the furniture for such home) or those received by way of a gift from a 3rd party or inheritance do not form part of the matrimonial 'pot' to be divided on divorce. Once the value of the matrimonial assets has been established, we then look at how the value of the overall 'pot' should be divided. The starting point is that there should be a 50/50 division, but this can be deviated from in certain circumstances.
When can I get divorced/ when will my civil partnership be dissolved?
In Scotland, the divorce/ dissolution of a civil partnership will be dealt with after the financial and child matters arising from the marriage/ civil partnership have been resolved. Divorce/ dissolution can be granted on the basis that the parties have been separated for 1 year ( if the other spouse/civil partner consents) or after two years without consent. It is possible to divorce/ dissolve the civil partnership using a 'fault' ground, being unreasonable behaviour and in the case of divorce, adultery. This is, however, generally discouraged. The conduct of a spouse/civil partner during the marriage/ civil partnership will generally not have an impact on the outcome of the financial settlement.
Pre-nuptial agreements
These are becoming increasingly common. If such a pre-nuptial agreement exists, its terms will be looked at in determining how the value of the 'pot' should be divided and how certain assets should be treated or divided after the breakdown of a marriage/civil partnership.
The use of a pre-nuptial agreement ( entered into prior to the marriage/civil partnership) or a post-nuptial agreement (entered into by the parties during the marriage/civil partnership) is recommended. Under Scots Law, whilst assets acquired prior to the marriage ( subject to the exception regarding the family home/ furnishings for such a home referred to above), inherited assets and gifts from 3rd parties are not in the 'pot' to be divided on divorce, if these assets change form during the marriage, the 'new' asset is in the 'pot'. A pre-nuptial agreement can make clear that any 'new' assets would be excluded from the 'pot'.
A breakdown in any relationship is difficult but the LGBT+ family law team at Brodies is here to help. We provide expert advice on all aspects of separation and divorce and have a number of family law specialists who are accredited by the Law Society of Scotland.
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