Financial issues
When a couple separate, clear, straightforward advice about financial matters is of the utmost importance.
Aliment
Spouses have a duty to "aliment" i.e. maintain each other until divorce. The duty is to provide such support as is reasonable in the circumstances and the court will consider the following factors.
- The needs and resources of the parties
- The earning capacities of the parties
- All the circumstances of the case
There is no such duty for cohabitants.
We will be able to advise as to the level of aliment you should be entitled to receive/pay and how to progress matters quickly.
Q: My husband has not paid me any money since we separated – what should I do?
A: if your husband is refusing to pay you a reasonable amount of aliment, we can assist you in making an application to the court for aliment.
Q: My wife obtained an award of aliment from the courts last year. However I am now in a job that pays less well. I can't afford the aliment which I have to pay. Is there anything I can do?
A: If either party experiences a material change in their circumstances, an application can be made to the Court for variation of the original award.
Child maintenance
Under the Child Support Act 1991, child maintenance is now dealt with by the Child Support Agency, rather than the courts. We can also advise as to reaching a private agreement about child maintenance (please see our "Issues relating to Children" Information Sheet.)
Q: My ex boyfriend says that as we were not married he does not owe me any child maintenance for our daughter – is this correct?
A: No. The fact that you were not married is irrelevant. Both parents owe an obligation to their children to aliment them, whether they are married or not.
Q: My ex wife says that when our children are 18 years of age, she will not be responsible for paying child maintenance to them any longer. Is this true?
A: A child for the purposes of child maintenance is a person under 18 or a person between 18 and 25 who is "reasonably and appropriately undergoing instruction at an educational establishment or training for employment or for a trade, profession or vocation." Therefore, your ex wife will continue to be responsible for paying child maintenance to your children until they are 18 and the obligation to continue paying will depend on whether your children enter the workplace immediately or undertake further education/training.
Divorce Rights
In Scotland, in an action for divorce, either spouse may apply to the court for "financial provision on divorce." The courts must consider several principles when deciding what financial provision to award and also what is reasonable, having regard to the resources of the parties.
The guiding principle for financial provision on divorce is one of fair sharing of the net value of the matrimonial property, as at date of separation between the parties. "Fair sharing" has been interpreted as dividing property on a 50/50 basis, although there can be various circumstances where property is not split equally. Advice is essential to determine whether there are such circumstances in each individual case.
Q: I received an inheritance from my father when he died – is my estranged wife entitled to receive any of this money?
A: Generally, inherited property is not treated as matrimonial property although it depends what this property was used for within the marriage. Therefore, if you have received inherited property, taking advice is crucial.
Q: My husband and I have separated – he is saying that I am not entitled to any money – I don't know what to do. I don't want to go to court.
A: You should take full advice as to what you are entitled to. When making important decisions such as this, it is vital to be fully informed. Our family law team offers the services of trained collaborative solicitors – the collaborative law process is a less confrontational method of resolving difficult matters than the court system.