Section 10 provides that the Tribunal may deviate from “equal distribution” where such a derogation is justified by “special circumstances.” The law does not contain a comprehensive definition of “special circumstances” and the facts and circumstances of each case must be considered individually. [iii] A situation that appears quite frequently is where the source of the funds used to acquire a matrimonial property comes from marriage – for example, where the capital of a pre-marital land is used to purchase a matrimonial home. It is often argued (with different successes) that the element must be excluded before marriage. This is not a simple legal area and, ultimately, the absence of agreement is a matter of the discretion of the Court of Justice. “economic benefit,” an advantage acquired before or during marriage, including capital gains, income and earning capacity, and “economic disadvantage” must be interpreted accordingly; “contributions,” contributions made before or during the marriage; and includes indirect and non-financial contributions and, in particular, such a contribution, which is provided by the care of the family home or by the care of the family.) It is reasonable (and advisable) to apply these principles when they enter into an agreement between the two parties, whether or not they use lawyers to negotiate on their behalf. Factors to consider If a financial settlement is required for a child or to compensate for the burden of custody of a child, the Court takes into account that there are no strict and timely regulations. If the parents are unable to agree on how to receive the children, the court can be asked to determine where the children should live. Legal review is what would be in the best interests of children, so the court has a very broad discretion to decide that. In general, it is preferable for parents to be able to agree on this point, and there are a number of alternative dispute resolution options that may correspond to your circumstances rather than dealing with the uncertainty of a court decision. For more information on foster care, see our “Children`s Issues” section. You should seek legal advice in the event of a divorce application, as a applicant will be able to discuss the various options available to you. Depending on why you are applying, it does not matter that your spouse disagrees, as in certain circumstances you can file for divorce without consent.
Your lawyer can also help you negotiate the terms of a separation agreement with your spouse and a divorce can be sought at a later date. If you wish to use a speculative fee agreement, you must sign a written agreement with the lawyer before the lawyer accepts the case. Many couples live together, but are not married or in partnership. Although they do not have the same clear rights as married couples or life partners, couples who live together may, in certain circumstances, be recognised under Scottish law. You can also have a legal agreement recognizing your relationship to cover potential problems. From November 1, 2019, all lawyers who requalify from another jurisdiction will be able to apply for the assessment of qualified lawyers.