Many couples believe when there are no children under the age of 16 that a simplified divorce or a “do it yourself divorce” is the best way forward.
Often, people are looking to keep costs generally to a minimum. However, there are pitfalls if you don’t take legal advice prior to proceeding with a simplified divorce application. Many people are unaware of the rights that they have to various different assets and the division of matrimonial property in Scotland. One such asset that is often overlooked is pensions and these can be an extremely valuable asset for those who are separating.
Separating couples are frequently under the misconception that every single asset that they hold must be divided equally down the middle. That is not the case and when looking at resolving financial issues, we are looking at everything in the round, namely “the matrimonial pot”. By this we mean all assets and liabilities accrued during the period of the marriage.
Quite often the valuation of a pension can vastly change the value of assets to be considered as part of this exercise. Some pensions held by parties can be more valuable than, for example the family home and as such they are not an asset that should be quickly overlooked. The value of a pension can be offset against other assets and it does not necessarily have to be a case of the pension being shared between parties. It is something that parties do need to consider very carefully and look at when progressing matters in terms of their separation and ultimately their divorce.
We regularly see parties agreeing that they are both going to keep their own pension without really understanding the value of the pension or the worth of that for the period of the marriage. This is why it is very important to take both independent legal advice and also financial advice. You need to consider the situation in terms of your own specific circumstances and how this may affect you going forward in the future to ensure that you are financially protected and as financially stable as possible in your single life.
Further, although some parties when progressing matters themselves may have decided that they will pension share, it is important that a solicitor looks over any agreements to ensure that the provisions of this can actually take effect. There are very strict time limits in respect of a pension share being implemented post-divorce and many couples separating are unaware of these. This can lead to pitfalls and difficulty further down the line.
Divorce in Scotland is final. Once the divorce is granted the court is very unlikely to overturn that and it is important to ensure that all assets and liabilities forming the matrimonial pot have been dealt with. When progressing a DIY divorce or simplified divorce, it is very clear on the court papers that parties should take their own legal advice. A party stating that they didn’t know they should do that at a later stage is unlikely to get very far asking the court overturn any such decree of divorce.
Contact our office for specialist family law advice by emailing info@caritaslegal.co.uk or telephoning 01383 431 101 to make an appointment.
