42 Te Modern Family Family Life


Promotional Content • Saturday 2 September 2023


Divorce has its differences: the Scottish route to securing financial settlements


of separation and divorce. Depending on the nature of


L


indsey Ogilvie often reads with interest


articles people’s personal


concerning experience


the relationship


prior to separation, and the reasons for the breakdown of the marriage, people’s account of the process and its effect upon them personally and their


children differs greatly.


Individuals experience trauma and stress in varying degrees and it has brought into focus how Lindsey as a family lawyer advises and supports clients from a first meeting to guiding them through the separation process leading up to divorce. Quoting the wise words recently


written by Barbara Ellen, breaking up is hard but avoiding the scenario where it becomes a ‘toxic car crash’ must be a priority for all concerned. Lindsey practices solely in


Scotland, where the legal route for securing a financial settlement and ultimately divorce is very different to that


in England and Wales. In


England and Wales, you’re required to divorce before monetary matters are considered, while in Scotland, the converse applies. You rarely see Scottish divorcing stories hitting


couple’s the press.


Despite this, unlike in England and Wales until recently, Scotland has always had an open policy in its family law courts, which are open to


the public except for certain hearings involving children and their care. Te explanation for the lack of press interest may be because the Scottish system enables parties following their separation to negotiate a finan- cial settlement embodied in a binding legal contract between the parties known as a ‘minute of agreement’. Importantly, that document records and acts as the full and final settle- ment of any financial claim either party could make against the other for all time coming, even on death. Tat same document could also record the arrangements the parties have agreed for the care of their children, payment of school fees and the like. Parties can opt for that agreement to remain private between them with no press-worthy information coming to light. Only in circumstances where the agreement requires enforcement — such as a failure or delay by one party to implement any settlement terms — would the agreement need to be registered in a public register to confer upon that agreement the force of a court order. Assuming the existence of such a


document, the parties would then be free to secure a divorce through the court without any need for the parties to attend court and/or for the court to have any knowledge of the financial settlement reached. In other words, securing your divorce is an entirely


administrative process and, in the case of a couple with no children or children over the age of 16, can be obtained through a form-filling exer- cise at minimal cost and within a matter of a few months. Securing such an outcome can still


be achieved against the background of a litigation should a party require the court’s assistance to encourage a reluctant spouse to fully disclose assets, or to secure protective orders whether financial or personal. Te ‘minute of agreement’ can be final- ised, and frequently are finalised, at the doors of court to avoid a costly


evidential hearing with an


uncertain outcome. While this article has focused upon


the end of a parties’ relationship, frequently and increasingly, family lawyers are involved in family creation assisting parties with the preparation of pre-nuptial and cohabitation agree- ments, which again can be private, to provide a welcome certainty in the event of a separation in future. It may not be romantic, but forward planning can aid an otherwise difficult situation.


turcanconnell.com


Lindsey Ogilvie is a family law partner at Turcan Connell and an accredited specialist in both child and family law — lindsey.ogilvie@turcanconnell.com


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