What does the law offer?
When two people are no longer making plans for a joint future difficulties can arise because there may be a disagreement over what is fair and what values are important on a personal level. Each of you will tend to become increasingly preoccupied about your own separate future. Because that will have an element of uncertainty about it this preoccupation is likely to be coloured by anxiety. In turn, that can make you become rather less sensitive to others in the situation.
Because of all these factors it is usually helpful and important to be able to refer to some more neutral framework as a benchmark for fairness. The legal rules can provide such a benchmark. If you can resolve matters by agreement then the legal rules remain simply guidelines. If you can’t agree, then the legal rules will be applied in the decision making process which would then be likely to take place in court proceedings.
The legal rules may not reflect your personal values. They are usually an attempt to be fair. They were arrived at after wide consultation about what would be fair for the adults in terms of finance and helpful to children. Even so, they may not take into account ethical or moral aspects which might be considered important by one of you. Sometimes in an agreed settlement these other values can be given some weight but if matters have to be resolved in court proceedings, it is important to understand that the rules are there to provide certainty and will not always do so in a way of your choosing.
What is useful is to know what the legal rules are. It is then possible to assess how close they are to your own value system. If they coincide then it is reassuring to know that whether or not matters can be agreed the considerations will reflect your own priorities. It then becomes important to weigh up what factual information there is to tie in with your own reading of a situation. If legal rules have to be applied then there is usually quite an exacting standard of evidence needed to prove your account if this is in conflict with someone else’s.
One aspect which can seem quite harsh about legal rules is that people are expected to a large degree to look out for their own interests. That will often mean ensuring that there is a very clear record, preferably in writing, of any agreements which have been reached.
In Scotland when couples separate, in most cases the arrangements for children and the financial consequences are resolved by agreement. The terms are set down in a document called a Separation Agreement or Minute of Agreement. Only a court can end a marriage or civil partnership by granting a divorce. Although that is a very significant step it is usually fairly straightforward in legal terms. What is more complex is sorting out the child related and financial issues. If they have been sorted out in a Separation Agreement or Minute of Agreement the court doesn’t need to deal with those aspects. If not then the court has to be asked to make decisions about them, to think about applying the legal rules. Legal rules don’t need to be a straightjacket. They should help give shape to agreed settlements. There are potential legal claims involving money property and pensions which will be lost if not sorted out before or as part of divorce proceedings.
Family lawyers act as interpreters, guides, negotiators and advocates as well as being a gateway to other resources. They help you make sense of the legal rules in your particular circumstances, assess the options and work out the best way to deal with the practical plans. This broad outline of information is just a starting point. The specific combination of details relevant for you has to be taken into account to assess a workable way to take matters forward. A family lawyer provides practical support and strategies to achieve a workable transition. You and your partner may have similar ideas about how to sort things out. You may have very different ideas. You may have no idea of where to start. Whichever applies lawyers have a helpful role to play. Your lawyer can help you to check that proposals are fair and what other aspects need to be considered. Unless there is very little in the way of money and no property to sort out, it will be important to have a properly worded agreement drawn up and carried out or, in some cases, an application made to court to sort things out. Ways of Sorting Things Out explains the different approaches available to sorting things out.
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